Childs v. ARMOUR FOOD COMPANY

Court of Appeals of Georgia

Childs v. ARMOUR FOOD COMPANY

333 S.E.2d 377, 175 Ga. App. 455, 1985 Ga. App. LEXIS 2119

CourtCourt of Appeals of Georgia

DecidedJune 17, 1985

Docket70174

StatusPublished

Cited by3 cases

This text of 333 S.E.2d 377 (Childs v. ARMOUR FOOD COMPANY) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Childs v. ARMOUR FOOD COMPANY, 333 S.E.2d 377, 175 Ga. App. 455, 1985 Ga. App. LEXIS 2119 (Ga. Ct. App. 1985).

Pincite

Opinion

McMurray, Presiding Judge.

The sole issue for consideration in this case is whether the action *456 is barred by the applicable statute of limitation. The plaintiff Walter Childs was injured in an automobile collision on May 31, 1976. He became eligible for personal injury protection benefits for loss of wages under the Georgia Motor Vehicle Accident Reparations Act. The defendant Armour Food Company is self-insured with respect to no-fault coverage. At the time of the collision, $5,000 in basic personal injury protection (PIP) coverage was available from Armour Food Company. Plaintiff first made a claim in 1984 for PIP benefits resulting from the collision. Defendant refused to pay the benefits to plaintiff and this suit was filed on January 31, 1984. Defendant moved for summary judgment based upon stipulated facts. The trial court granted defendant’s motion, ruling that plaintiff’s action was time barred. Held:

Decided June 17, 1985 Rehearing denied July 12, 1985. W. LaRue Boyce, Jr., for appellant.

1. “Where a policy of insurance contains no limitation as to when suit thereon shall be filed, the period of limitation of action thereon is six years.” Patrick v. Travelers Ins. Co., 51 Ga. App. 253 (2) (180 SE 141). This is necessarily the rule because actions upon simple contracts in writing are subject to a six-year statute of limitation. OCGA § 9-3-24. Thus, in a suit to recover basic no-fault benefits, the applicable limitation period is six years. Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825 (1) (264 SE2d 296), revd. on other grounds, 245 Ga. 654 (266 SE2d 505). See also Bryant v. Allstate Ins. Co., 254 Ga. 328 (326 SE2d 753); Ga. Farm Bureau Mut. Ins. Co. v. Musgrove, 254 Ga. 333 (328 SE2d 565). Since this action was brought more than six years after the collision which gave rise to plaintiff’s claim for personal injury protection benefits, it is time barred. Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825 (1), supra.

2. Plaintiff’s reliance upon U. S. Fidelity &c. Co. v. Ryder Truck Lines, 160 Ga. App. 650 (288 SE2d 1), is misplaced. In that case, we ruled that a claim based upon the statutory subrogation provisions of the Georgia Motor Vehicle Accident Reparations Act carried with it a twenty-year limitation period. Such a claim was founded, however, upon statutory, not contractual, liability. In the case sub judice, plaintiff’s cause of action lies in contract. Had there been no approved plan of self-insurance in this case, plaintiff would have had no claim for personal injury protection benefits.

Judgment affirmed.

Banke, C. J., and Benham, J., concur. *457 Thomas S. Carlock, Michael McGlamry, R. Clay Porter, for appellee.

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McMurray, Presiding Judge.

The sole issue for consideration in this case is whether the action *456 is barred by the applicable statute of limitation. The plaintiff Walter Childs was injured in an automobile collision on May 31, 1976. He became eligible for personal injury protection benefits for loss of wages under the Georgia Motor Vehicle Accident Reparations Act. The defendant Armour Food Company is self-insured with respect to no-fault coverage. At the time of the collision, $5,000 in basic personal injury protection (PIP) coverage was available from Armour Food Company. Plaintiff first made a claim in 1984 for PIP benefits resulting from the collision. Defendant refused to pay the benefits to plaintiff and this suit was filed on January 31, 1984. Defendant moved for summary judgment based upon stipulated facts. The trial court granted defendant’s motion, ruling that plaintiff’s action was time barred. Held:

Decided June 17, 1985 Rehearing denied July 12, 1985. W. LaRue Boyce, Jr., for appellant.

1. “Where a policy of insurance contains no limitation as to when suit thereon shall be filed, the period of limitation of action thereon is six years.” Patrick v. Travelers Ins. Co., 51 Ga. App. 253 (2) (180 SE 141). This is necessarily the rule because actions upon simple contracts in writing are subject to a six-year statute of limitation. OCGA § 9-3-24. Thus, in a suit to recover basic no-fault benefits, the applicable limitation period is six years. Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825 (1) (264 SE2d 296), revd. on other grounds, 245 Ga. 654 (266 SE2d 505). See also Bryant v. Allstate Ins. Co., 254 Ga. 328 (326 SE2d 753); Ga. Farm Bureau Mut. Ins. Co. v. Musgrove, 254 Ga. 333 (328 SE2d 565). Since this action was brought more than six years after the collision which gave rise to plaintiff’s claim for personal injury protection benefits, it is time barred. Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825 (1), supra.

2. Plaintiff’s reliance upon U. S. Fidelity &c. Co. v. Ryder Truck Lines, 160 Ga. App. 650 (288 SE2d 1), is misplaced. In that case, we ruled that a claim based upon the statutory subrogation provisions of the Georgia Motor Vehicle Accident Reparations Act carried with it a twenty-year limitation period. Such a claim was founded, however, upon statutory, not contractual, liability. In the case sub judice, plaintiff’s cause of action lies in contract. Had there been no approved plan of self-insurance in this case, plaintiff would have had no claim for personal injury protection benefits.

Judgment affirmed.

Banke, C. J., and Benham, J., concur. *457 Thomas S. Carlock, Michael McGlamry, R. Clay Porter, for appellee.

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Bluebook (online)

333 S.E.2d 377, 175 Ga. App. 455, 1985 Ga. App. LEXIS 2119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childs-v-armour-food-company-gactapp-1985.

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